Let The Buyer Beware—The Pitfalls of Buying Claims In Bankruptcy Cases

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Bankruptcy court decisions from New York, Wilmington, and Chicago provide a costly reminder to bankruptcy claim purchasers that the principle of caveat emptor is alive and well. The sale of bankruptcy claims has become commonplace in bankruptcy cases over the years. Creditors are attracted to selling their claims in bankruptcy because it provides immediate cash and eliminates uncertainty about the recovery on the claim. In turn, claim buyers may acquire claims either to make a profit based on their superior knowledge of the case, or to secure some advantage in dealing with the debtor or its other creditors. For example, in In re Fagerdala USA-Lompoc, Inc., Case No. 16-35430 (9th Cir. June 4, 2018), the Court of Appeals for the Ninth Circuit held that a secured creditor could purchase some of the general unsecured claims for the purpose of voting them against the debtor’s plan and blocking confirmation, so long as the secured creditor simply was acting in its own enlightened self-interest.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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